Employers' refusal to hire medical marijuana user found unlawful

May 29, 2017

Employment Law Alert

Author(s): Andrew B. Prescott

A Rhode Island court recently ruled that employers cannot refuse to hire prospective employees who use medical marijuana. This alert discusses what businesses need to know.

A Rhode Island Superior Court Judge, Richard Licht, has ruled on summary judgment that an employer has run afoul of two state laws by refusing to hire a medical marijuana user. Until and unless reversed on appeal, the May 23, 2017 decision in Christine Callaghan v. Darlington Fabrics, C.A. No. P.C. 2014-5680 will create myriad headaches for employers when dealing with medical marijuana using applicants and employees. The assumed right to refuse to hire or to fire with impunity a person using marijuana—a federally controlled substance—because of such usage, has suddenly gone up in smoke.

Christine Callaghan disclosed to Darlington when applying for an internship that she was a medical marijuana cardholder and current user of medical marijuana. She promised not to use or possess marijuana at Darlington, but she predicted that she would fail the required pre-employment drug test because of her ongoing marijuana use. Darlington declined to hire her.

Ms. Callaghan sued under two laws: the Rhode Island medical marijuana law (Hawkins-Slater Act) and the Rhode Island Civil Rights Act (RICRA). The Hawkins-Slater Act makes lawful (as a matter of Rhode Island law) the use and possession (within certain limits) of marijuana by “qualified patients” diagnosed as having a “debilitating medical condition.” Qualified patients may obtain registry identification cards evidencing their qualification for protection under the law. A January 2017 Rhode Island Department of Health report states that as of December 31, 2016, there were 16,418 active registered patients qualified for medical marijuana usage for symptom relief. Approximately 21 states have similar medical marijuana statutes. RICRA provides that all persons in Rhode Island have the same right to make and enforce contracts regardless of certain protected characteristics including disability.

Judge Licht found a right to sue for damages under the Hawkins-Slater Act, and determined that Darlington had violated that law by rejecting Ms. Callaghan. Specifically, he concluded that Darlington’s refusal to hire Ms. Callaghan violated the Hawkins-Slater Act’s prohibition against refusing to “employ . . . a person solely for his or her status as a cardholder.” Darlington argued that it rejected her because of her inability to pass the required drug test; not because she was a medical marijuana cardholder. But Judge Licht deemed “incredulous” the suggestion that the general assembly intended a distinction between medical marijuana cardholders and users. Judge Licht opined that “the Hawkins-Slater Act provides that employers cannot refuse to employ a person for his or her status as a cardholder, and that right may not be denied for the medical use of marijuana.” (emphasis added). Judge Licht wrote that the Hawkins-Slater Act does not require employers to accommodate medical marijuana use. He concluded that Darlington’s written policy requiring drug testing did not expressly provide that a positive test precludes hiring, so no alteration of the policy would be needed to hire Ms. Callaghan.

Courts from other jurisdictions have repeatedly rejected claims that refusing to hire a medical marijuana user, because of the marijuana use, constitutes disability discrimination. But Judge Licht also found that Ms. Callaghan had a viable claim under RICRA. He reasoned that because a person must have a “debilitating medical condition” to hold a medical marijuana card (as a patient), a cardholder is “disabled” under RICRA as a matter of law. Darlington’s lack of knowledge about any specific disability of Ms. Callaghan made no difference, according to the court. It was enough that Darlington knew she was a cardholder. Judge Licht rejected Darlington’s argument that RICRA excuses an employer from having to reasonably accommodate an applicant currently engaged in the illegal use of drugs as defined by federal law. At the same time, Judge Licht said that modifying Darlington’s unwritten practice of rejecting applicants who test positive for marijuana, “would be deemed a reasonable accommodation” in the case of a medical marijuana cardholder.

Employers may take some comfort in knowing that other Rhode Island Superior Court judges remain free to interpret these laws differently. And ultimately, the Supreme Court of Rhode Island may overrule Judge Licht’s decision. But for now, medical marijuana users have this precedent to rely on in proceeding against employers. Employers, both in Rhode Island and in other states with medical marijuana laws, should plan for dealing with medical marijuana-using applicants and employees.

Safety is a major concern for all employers. Judge Licht noted in Darlington that the Hawkins-Slater Act does “not permit any person to undertake any task under the influence of marijuana when doing so would constitute negligence or professional malpractice.” He posited that an employer would not have to tolerate an employee coming to work under the influence if he or she could not perform his or her duties in a competent manner. Even leaving aside questions about what the negligence provision in the Hawkins-Slater Act really means, employers forced to employ marijuana users will struggle to maintain safe and productive workplaces. Tests for cannabis don’t measure current impairment, and Rhode Island law significantly restricts the circumstances under which employers can drug test employees. Thus, employers have no effective way to guard against impaired medical marijuana users.

The foregoing has been prepared for the general information of clients and friends of the firm. It is not meant to provide legal advice with respect to any specific matter and should not be acted upon without professional counsel. If you have any questions or require any further information regarding these or other related matters, please contact your regular Nixon Peabody LLP representative. This material may be considered advertising under certain rules of professional conduct.

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